Posted January 15, 2015
The press has been abuzz in recent months regarding the launch of various Internet-based video services and the FCC's decision to revisit its current definition of Multichannel Video Programming Distributors (MVPDs). In December, the FCC released a Notice of Proposed Rulemaking (NPRM), seeking to "modernize" its rules to redefine what constitutes an MVPD. The FCC's proposals would significantly expand the universe of what is considered an "MVPD" to include a wide-variety of Internet-based offerings. Today, the FCC released a Public Notice providing the dates by which parties can provide their own suggestions regarding how to modify the definition of "MVPD". Comments are now due February 17, 2015, with reply comments due March 2, 2015.
The Communications Act currently defines an "MVPD" as an entity who "makes available for purchase, by subscribers or customers, multiple channels of video programming." Specific examples given of current MVPDs under the Act are "a cable operator, a multichannel multipoint distribution service, a direct broadcast satellite service, or a television receive-only satellite program distributor who makes available for purchase, by subscribers or customers, multiple channels of video programming." The Act states, however, that the definition of MVPD is "not limited" to these examples.
Historically, MVPDs have generally been defined as entities that own the distribution system, such as cable and DBS satellite operators, but now the FCC is asking for comments on two new possible interpretations of the term "MVPD." The first would "includ[e] within its scope services that make available for purchase, by subscribers or customers, multiple linear streams of video programming, regardless of the technology used to distribute the programming." The second would hew closer to the traditional definition, and would "require an entity to control a transmission path to qualify as an MVPD". The FCC's is looking for input regarding the impact of adopting either of these proposed definitions.
What all this means is that the FCC is interested in making the definition of "MVPD" more flexible, potentially expanding it to include not just what we think of as traditional cable and satellite services, but also newer distribution technologies, including some types of Internet delivery.
Underscoring its interest in this subject, the FCC asks a wide array of questions in its NPRM regarding the impact of revising the MVPD definition. The result of this proceeding will have far-reaching impact on the video distribution ecosystem, and on almost every party involved in the delivery of at least linear video programming. Consequently, this is an NPRM that will continue to draw much attention and merits special consideration by those wondering where the world of video distribution is headed next.
Posted January 5, 2015
In what has become an annual holiday tradition going back so far none of us can remember when it started (Pillsbury predates the FCC by 66 years), we released the 2015 Broadcasters' Calendar last week.
While starting a new year is usually jarring, particularly breaking yourself of the habit of dating everything "2014", this new year seems particularly so, as many took last Friday off, making today, January 5th, their first day back at work. For broadcasters, whose fourth quarter regulatory reports need to be in their public inspection files by January 10th, that doesn't leave much time to complete the tasks at hand.
To assist in meeting that deadline, we also released last week our fourth quarter Advisories regarding the FCC-mandated Quarterly Issues/Programs List (for radio and TV) and the Form 398 Quarterly Children's Programming Report (for TV only). Both have not-so-hidden Easter Eggs for Class A TV stations needing to meet their obligation to demonstrate continuing compliance with their Class A obligations, effectively giving you three advisories for the price of two (the price being more strain on your "now a year older" eyes)!
And all that only takes you through January 10th, so you can imagine how many more thrilling regulatory adventures are to be found in the pages of the 2015 Broadcasters' Calendar. Whether it's SoundExchange royalty filings, the upcoming Delaware and Pennsylvania TV license renewal public notices, or any of a variety of FCC EEO reports coming due this year, broadcasters can find the details in the 2015 Broadcasters' Calendar. For those clamoring for an audiobook edition, we're holding out for James Earl Jones. We'll keep you posted on that.
Posted December 29, 2014
By Scott R. Flick and Jessica Nyman
Pillsbury's communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month's issue includes:
- Sponsorship Identification Violation Yields $115,000 Civil Penalty
- $13,000 Increase in Fine Upheld for Deliberate and Continued Operation at Unauthorized Location
- FCC Reduces $14,000 Fine for EAS and Power Violations Due to Inability to Pay
FCC Adopts Consent Decree Requiring Licensee to Pay $115,000 Civil Penalty
Earlier this month, the FCC's Enforcement Bureau entered into a Consent Decree with a Nevada TV station terminating an investigation into violations of the FCC's sponsorship identification rule.
The FCC's sponsorship identification rule requires broadcast stations to identify the sponsor of content aired whenever any "money, service, or other valuable consideration" is paid or promised to the station for the broadcast. The FCC has explained that the rule is rooted in the idea that the broadcast audience is "entitled to know who seeks to persuade them."
In 2009, the FCC received a complaint alleging that an advertising agency in Las Vegas offered to buy air time for commercials if broadcast stations aired news-like programming about automobile liquidation sales events at dealerships. The FCC investigated the complaint and found that the licensee's TV station accepted payment to air "Special Reports" about the liquidation sales. The "Special Reports" resembled news reports, and featured a station employee playing the role of a television reporter questioning representatives of the dealership about their ongoing sales event.
The licensee acknowledged the applicability of the sponsorship identification rule to the "Special Reports," but asserted that the context made clear their nature as paid advertisements despite the absence of an explicit announcement. The FCC disagreed, contending that the licensee failed to air required sponsorship announcements for twenty-seven "Special Reports" broadcast by the station from May through August of 2009.
As part of the Consent Decree, the licensee admitted to violating the FCC's sponsorship identification rule and agreed to (i) pay a civil penalty of $115,000; (ii) develop and implement a Compliance Plan to prevent future violations; and (iii) file Compliance Reports with the FCC annually for the next three years.
FCC Finds That Corrective Actions and Staffing Problems Do Not Merit Reduction of Fine
The FCC imposed a $25,000 fine against a Colorado radio licensee for operating three studio-transmitter links ("STL") from a location not authorized by their respective FCC licenses.
Section 301 of the Communications Act prohibits the use or operation of any apparatus for the transmission of communications signals by radio, except in accordance with the Act and with a license from the FCC. In addition, Section 1.903(a) of the FCC's Rules requires that stations in the Wireless Radio Services be operated in accordance with the rules applicable to their particular service, and only with a valid FCC authorization.
In August 2012, an agent from the Enforcement Bureau's Denver Office inspected the STL facilities and found they were operating from a location approximately 0.6 miles from their authorized location. The agent concluded--and the licensee did not dispute-- that the STL facilities had been operating at the unauthorized location for five years. A July 2013 follow-up inspection found that the STL facilities continued to operate from the unauthorized location.
Posted December 11, 2014
The FCC announced in March of this year that it would begin treating TV Joint Sales Agreements between two local TV stations involving more than 15% of a station's advertising time as an attributable ownership interest. However, it also announced at that time that it would provide parties to existing JSAs two years from the effective date of the new rule to make any necessary modifications to ensure compliance with the FCC's multiple ownership rule. As I wrote in June when the new rule went into effect, that made June 19, 2016 the deadline for addressing any issues with existing JSAs.
However, the STELA Reauthorization Act of 2014 (STELAR) became law on December
4, 2014. While the primary purpose of STELAR was to extend for an additional five years the compulsory copyright license allowing satellite TV providers to import distant network TV signals to their subscribers where no local affiliate is available, as often happens in Congress, a number of unrelated provisions slipped into the bill. One of those provisions extended the JSA grandfathering period by a somewhat imprecise "six months".
Today, the FCC released a Public Notice announcing that it would deem December 19, 2016 to be the new deadline for making any necessary modifications to existing TV JSAs to ensure compliance with the FCC's multiple ownership rule. As a result, in those situations where the treatment of a JSA as an attributable ownership interest would create a violation of the FCC's local ownership limits, the affected broadcaster will need to take whatever steps are necessary to ensure that it has remedied that situation by the December 19, 2016 deadline.
Annual DTV Ancillary/Supplementary Services Report Due for Commercial and Noncommercial Digital Television Stations
Posted December 1, 2014
All commercial and noncommercial educational digital television broadcast station licensees and permittees must file FCC Form 317 by December 1, 2014.
The FCC requires all digital television stations, including all commercial and noncommercial educational full power television stations, digital low power television stations, digital translator television stations, and digital Class A television stations, to submit FCC Form 317 each year. The report details whether stations provided ancillary or supplemental services at any time during the twelve-month period ending on the preceding September 30. It is important to note that the FCC Form 317 must be submitted regardless of whether stations offered any such services. FCC Form 317 must be filed electronically, absent a waiver, and is due on December 1, 2014.
Ancillary or supplementary services are all services provided on the portion of a DTV station's digital spectrum that is not necessary to provide the required single free, over-the-air signal to viewers. Any video broadcast service that is provided with no direct charge to viewers is exempt. According to the FCC, examples of services that are considered ancillary or supplementary include, but are not limited to, "computer software distribution, data transmissions, teletext, interactive materials, aural messages, paging services, audio signals, subscription video, and the like."
If a DTV station provided ancillary or supplementary services during the 12-month time period ending on September 30, 2014, it must pay the FCC 5% of the gross revenues derived from the provision of those services. This payment can be forwarded to the FCC's lockbox at the U.S. Bank in St. Louis, Missouri and must be accompanied by FCC Form 159, the Remittance Advice. Alternatively, the fee can be paid electronically using a credit card on the FCC's website. The fee amount must also be submitted by the December 1, 2014 due date.
A PDF version of this article can be found at Annual DTV Ancillary/Supplementary Services Report Due for Commercial and Noncommercial Digital Television Stations.
Pre-Filing and Post-Filing License Renewal Announcement Reminder for TV Stations in New Jersey and New York
Posted December 1, 2014
TV, Class A TV, and locally originating LPTV stations licensed to communities in New Jersey and New York must begin airing pre-filing license renewal announcements on December 1, 2014. License renewal applications for all TV stations in New Jersey and New York are due by February 2, 2015.
Pre-Filing License Renewal Announcements
Stations in the video services that are licensed to communities in New Jersey and New York must file their license renewal applications by February 2, 2015.
Beginning two months prior to that filing, full power TV, Class A TV, and LPTV stations capable of local origination must air four pre-filing renewal announcements alerting the public to the upcoming license renewal application filing. These stations must air the first pre-filing announcement on December 1, 2014. The remaining announcements must air on December 16, 2014 and January 1, and January 16, 2015, for a total of four announcements. A sign board or slide showing the licensee's address and the FCC's Washington DC address must be displayed while the pre-filing announcements are broadcast.
For commercial stations, at least two of these four announcements must air between 6:00 p.m. and 11:00 p.m. (Eastern/Pacific) or 5:00 p.m. and 10:00 p.m. (Central/Mountain). Locally-originating LPTV stations must broadcast these announcements as close to the above schedule as their operating schedule permits. Noncommercial stations must air the announcements at the same times as commercial stations, but need not air any announcements in a month in which the station does not operate. A noncommercial station that will not air some announcements because it is off the air must air the remaining announcements as listed above, i.e., the first two must air between 6:00 p.m. and 11:00 p.m. (Eastern/Pacific) or 5:00 p.m. and 10:00 p.m. (Central/Mountain).
The text of the pre-filing announcement is as follows:
On [date of last renewal grant], [call letters] was granted a license by the Federal Communications Commission to serve the public interest as a public trustee until June 1, 2015. [Stations which have not received a renewal grant since the filing of their previous renewal application should modify the foregoing to read: "(Call letters) is licensed by the Federal Communications Commission to serve the public interest as a public trustee."]
Our license will expire on June 1, 2015. We must file an application for renewal with the FCC by February 1, 2015. When filed, a copy of this application will be available for public inspection at www.fcc.gov. It contains information concerning this station's performance during the last eight years [or other period of time covered by the application, if the station's license term was not a standard eight-year license term].
Individuals who wish to advise the FCC of facts relating to our renewal application and to whether this station has operated in the public interest should file comments and petitions with the Commission by May 1, 2015.
Further information concerning the FCC's broadcast license renewal process is available at [address of location of the station] or may be obtained from the FCC, Washington, DC 20554.
If a station misses airing an announcement, it should broadcast a make-up announcement as soon as possible and contact us to further address the situation. As noted above, special rules apply to noncommercial stations that do not normally operate during any month when their announcements would otherwise be required to air, as well as to other silent stations. These stations should contact us to ensure they give the required public notice.
Annual EEO Public File Report Deadline for Stations in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont
Posted December 1, 2014
This Broadcast Station Advisory is directed to radio and television stations in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont, and highlights the upcoming deadlines for compliance with the FCC's EEO Rule.
December 1, 2014 is the deadline for broadcast stations licensed to communities in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont to place their Annual EEO Public File Report in their public inspection files and post the reports on their station websites.
Under the FCC's EEO Rule, all radio and television station employment units ("SEUs"), regardless of staff size, must afford equal opportunity to all qualified persons and practice nondiscrimination in employment.
In addition, those SEUs with five or more full-time employees ("Nonexempt SEUs") must also comply with the FCC's three-prong outreach requirements. Specifically, all Nonexempt SEUs must (i) broadly and inclusively disseminate information about every full-time job opening, except in exigent circumstances, (ii) send notifications of full-time job vacancies to referral organizations that have requested such notification, and (iii) earn a certain minimum number of EEO credits, based on participation in various non-vacancy-specific outreach initiatives ("Menu Options") suggested by the FCC, during each of the two-year segments (four segments total) that comprise a station's eight-year license term. These Menu Option initiatives include, for example, sponsoring job fairs, participating in job fairs, and having an internship program.
Nonexempt SEUs must prepare and place their Annual EEO Public File Report in the public inspection files and on the websites of all stations comprising the SEU (if they have a website) by the anniversary date of the filing deadline for that station's license renewal application. The Annual EEO Public File Report summarizes the SEU's EEO activities during the previous 12 months, and the licensee must maintain adequate records to document those activities. Stations must also submit to the FCC the two most recent Annual EEO Public File Reports at the midpoint of their license term and with their license renewal application.
Exempt SEUs -- those with fewer than 5 full time employees -- do not have to prepare or file Annual or Mid-Term EEO Reports.
For a detailed description of the EEO rule and practical assistance in preparing a compliance plan, broadcasters should consult The FCC's Equal Employment Opportunity Rules and Policies - A Guide for Broadcasters published by Pillsbury's Communications Practice Group. This publication is available at: http://www.pillsburylaw.com/publications/broadcasters-guide-to-fcc-equal-employment-opportunity-rules-policies.
Biennial Ownership Reports are due by December 1, 2014 for Noncommercial Radio Stations in CO, MN, MT, ND, SD and Noncommercial Television Stations in AL, CT, GA, ME, MA, NH, RI and VT
Posted December 1, 2014
The staggered deadlines for noncommercial radio and television stations to file Biennial Ownership Reports remain in effect and are tied to each station's respective license renewal filing deadline.
Noncommercial radio stations licensed to communities in Colorado, Minnesota, Montana, North Dakota, and South Dakota and noncommercial television stations licensed to communities in Alabama, Connecticut, Georgia, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont must electronically file their Biennial Ownership Reports by December 1, 2014. Licensees must file using FCC Form 323-E and must also place the form as filed in their stations' public inspection files. Television stations must assure that a copy of the form is posted to their online public inspection files at https://stations.fcc.gov.
In 2009, the FCC issued a Further Notice of Proposed Rulemaking seeking comments on whether the Commission should adopt a single national filing deadline for all noncommercial radio and television broadcast stations like the one that the FCC has established for all commercial radio and television stations. In January 2013, the FCC renewed that inquiry. Until a decision is reached, noncommercial radio and television stations continue to be required to file their biennial ownership reports every two years by the anniversary date of the station's license renewal application filing deadline.
A PDF version of this article can be found at Biennial Ownership Reports are due by December 1, 2014 for Noncommercial Radio Stations in Colorado, Minnesota, Montana, North Dakota, and South Dakota and Noncommercial Television Stations in Alabama, Connecticut, Georgia, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont.